Asian Centre for Human Rights ___________________________________________________________________________________________________________________ P.O. Box 9627, Janakpuri, New Delhi-110058, India Phone: +91-11-25620583, 25503626; Fax: +91-11-25620583 Email: [email protected] ACHR Briefing Papers Embargoed for: 6 November 2003 Constitutional Coup in Sri Lanka: Back to the bad old days 1. Overview On 5 November 2003, Sri Lankan President Chandrika Kumaratunga1 in a constitutional coup declared emergency in the country. Prime Minister Ranil Wickramasinghe2 was on a visit to the United States. Earlier, on 4 November 2003, President Kumaratunga sacked Ministers for Information, Defence and Home, suspended the parliament for two weeks upto 19 November 2003 and ordered deployment of the troops in the key installations. President Kumaratunga justified her drastic steps due to the alleged threat to national security3 after the submission of the proposals by the Liberation Tigers of Tamil Eelam (LTTE) on 31 October 2003. The question remains as to whether allowing the LTTE to put across its proposals constitutes, what President Kumaratunga calls “making too many concessions”, to warrant the imposition of emergency. After all, on 1 November 2003, the Sri Lankan government led by Prime Minister Wickramasinghe said the offer made by the LTTE "differs in fundamental respects'' from its proposals made on 17 July 2003. But in an attempt to restart the process, the government said it was "convinced that the way forward lies through direct discussion of the issues''.4 A cursory analysis of the attempts to undermine each other by President and Prime Minister shows that rather than the LTTE proposals, the decision of the ruling United National Party (UNP) to put the motion to impeach controversial Supreme Court Chief Justice Sarath N Silva in the parliament on 6 November 2003 might have prompted the President to take such drastic steps. As any impeachment motion against the President ultimately has to be referred to a referendum by the Chief Justice, many Peoples Allaince (PA) leaders saw the impeachment of Chief Justice as the first step towards impeaching President Kumaratunga. President Kumartunga has so far successfully blocked any 1 . President Kumaratunga belongs to Peoples Alliance, the opposition party in the parliament. 2 . Prime Minister Ranil Wickremasinghe belongs to United National Party which holds majority in the parliament. 3 . http://news.bbc.co.uk/2/hi/south_asia/3241763.stm 4 . 'Proposals, Govt. offer differ in fundamental respects', The Hindu, New Delhi, 2 November 2003 Constitutional Coup in Sri Lanka: 2 Back to the bad old days attempt to clip her wings by the parliament with the help of Supreme Court Chief Justice N Silva. Justice Silva has been openly supportive of her. 2. Old rivalry and biased judiciary The rivalry between President and Prime Minister Ranil Wickramasinghe in Sri Lankan politics has been continuing for over a decade. But it has become even more apparent since the UNP came to power after the last general elections held in December 2001. While President Kumaratunga welcomed negotiation with the LTTE, she gradually hardened her stand. The government and the LTTE signed a ceasefire agreement in February 2002 and formal peace negotiations started in September 2002. But the talks broke down in April 2003 in large part because of Kumaratunga’s increasingly provocative actions, in league with sections of the armed forces. The last two rounds of talks were disrupted by naval incidents involving the seizure or sinking of LTTE vessels.5 On 25 October 2003, Kumaratunga wrote to the Norwegian Prime Minister Kjell Magne Bondvik requesting the recall of the head of the Sri Lanka Monitoring Mission, Major General, Tryggve Tellefsen.6 President Kumaratunga also wrote to the armed forces chiefs on 24 October 2003 directing them not to follow any of the SLMM’s instructions or advice.7 Since the UNP came to power, President Kumaratunga has sought to maintain her direct control over key elements of the state apparatus, particularly the security forces. For months the government and the President have been engaged in a feud over who decides top appointments. She extended the service of Navy Vice Admiral Daya Sandagiri and Army Commander Lionel Balagalla—regarded as her supporters—beyond their due retirement dates. At the same time, Kumaratunga overruled a proposal by Interior Minister John Amaratunga that the service of the existing Inspector General of Police (IGP) be extended.8 In an attempt to counter President’s move, Defence Minister promulgated regulations to retire Commissioned Officers of the Sri Lanka Army at the age of 55. President Kumaratunga referred the order of the Defence Minister to the Supreme Court under Article 129 of the Constitution.9 In September 2002, the UNP government sought to clip the power of the President by bringing the controversial 19th amendment to the constitution. The 19th amendment, among others, sought to amend Articles 49 and 70 of the Constitution to clip the President's powers to dissolve Parliament unilaterally one year after the previous elections. About 20 odd Peoples Alliance Members of Parliament reportedly supported the move of the government. The amendment also empowered parliamentarians with 5 . http://www.asiantribune.com/show_article.php?id=1071 6 . The Statesman, New Delhi, 31 October 2003. 7 . http://www.asiantribune.com/show_article.php?id=1071 8 . Ibid 9 . Tamil Net, November 02, 2003 12:24 GMT ACHR Briefing Paper 2003 Constitutional Coup in Sri Lanka: 3 Back to the bad old days "cross-voting rights" so that they could vote according to their conscience without being deprived of their seats for defying party discipline.10 The Supreme Court led by Chief Justice Sarath N Silva came to President’s rescue and shot down the 19th amendment. The court ruled the sections empowering MPs with cross voting rights to be unconstitutional. As for the President's power to dissolve Parliament, the Bench ruled that apart from ensuring the support of a two-thirds majority in Parliament for it, the nation at large has to endorse it in a country-wide referendum for it to become law. The court however added a caveat that no referendum was necessary if the present one-year period restricting the President from dissolving Parliament was extended simply to a three-year period. A two-thirds majority alone would suffice for the purpose if the 19th amendment were on those lines.11 Since constitutional amendments could be made with two-thirds majority, the order of a referendum raised questions about the independence of judiciary. The Supreme Court also struck down the 18th Amendment which provided that “no legal suit or proceedings shall be instituted against the Constitutional Council, its chairman, a member, the secretary or an officer of the council regarding any act done or omitted by them in performing or discharging any duty or function, conferred or assigned to them under the Constitution or any other law”. It also sought to empower the Constitutional Council to make rules to set out procedure and guidance to be followed by it while performing duties and actions assigned under the Constitution. The 17th Amendment, which formed the Constitutional Council (CC) of Sri Lanka, provided for legal action to be taken against the Council members under fundamental rights provisions in the Constitution.12 The Supreme Court however upheld constitutional validity of such impunity under the Prevention of Terrorist Act, 1979 and allowed the judiciary to function under the order of the Attorney General and the Defence Minister.13 During the hearing on the Defence Minister’s regulations of retiring the commissioned officers at the age of 55, Chief Justice criticised the government's conduct and indirectly tried to cast aspersions on the Government-LTTE ceasefire agreement.14 As the outcome of the verdict on the issue was clear, on 3 November 2003, the ruling UNP announced its decision to place the motion for the impeachment of the Chief Justice. The motion was scheduled to be tabled in parliament on 6 November 2003 after the government parliamentary group sources claimed that it had already received the signatures of required number of parliamentarians to move the impeachment as required by Sri Lanka's 10 . http://www.dailymirror.lk/2002/09/03/frontpage/5.html 11 . Frontline, Volume 19 - Issue 22, October 26 - November 08, 2002 12 . http://www.dailymirror.lk/2002/09/19/News/6.htmls 13 . Sri Lanka: Time for Overhauling Human Rights Mechanisms, An Alternate Report to the United Nations Human Rights Committee on the fourth periodic report of Sri Lanka (CCPR/C/LKA/2002/4), Asian Centre for Human Rights, New Delhi, 31 October 2003 14 . http://www.asiantribune.com/show_article.php?id=1071 ACHR Briefing Paper 2003 Constitutional Coup in Sri Lanka: 4 Back to the bad old days Constitution.15 As any impeachment motion against the President ultimately has to be referred to a referendum by the chief justice, President Kumaratunga decided to strike back and suspend the parliament. By suspending the parliament, the President has effectively stalled any impeachment proceedings against Justice Silva or herself.16 On 4 November 2003, Supreme Court sent its determination on Defence Minister’s regulations of retiring the commissioned officers at the age of 55 to President. The Supreme Court, as expected, held that the President shall exercise the executive power of the people including the defense of Sri Lanka and the Minister of Defence has no legal authority to amend the existing Regulations under the Army, Navy and Air Force Acts as the power to frame regulation is vested only in the President.17 3. Does a proposal warrant emergency On 31 October 2003, the LTTE submitted its proposals18 which among others calls for establishment of an Interim Self-Governing Authority (ISGA) comprising of the eight districts namely: Amparai, Batticaloa, Jaffna, Kilinochchi, Mannar, Mullaitivu, Trincomalee and Vavuniya in the north-east.